Small Stones, Great Times: The Case for Collective Redress in Europe

The following was the opening speech of the Berlin action for damages advocacy summit (BADAS) and was not adapted in the following.

There is a song I would like to begin with, which is very well known in Germany.

Bertolt Brecht was Germany's great poet and playwright of the last century, the man who gave the world The Threepenny Opera, who reinvented the theatre, and who, when Hitler came to power, packed a suitcase the morning after the Reichstag burned and spent fifteen years in exile, moving from country to country, one step ahead of the regime that wanted him silenced.

And in exile, far from home, he wrote a small song.

Das Lied von der Moldau. The Song of the Moldau, the river the Czechs call the Vltava, the river that runs through Prague.

It goes like this:

Am Grunde der Moldau wandern die Steine.
Es liegen drei Kaiser begraben in Prag.
Das Große bleibt groß nicht und klein nicht das Kleine.
Die Nacht hat zwölf Stunden, dann kommt schon der Tag.

At the bottom of the Moldau, the stones are wandering. 
Three emperors lie buried in Prague. 
The great does not stay great, and the small does not stay small. 
The night has twelve hours, and then comes the day.

Think of what it meant for an exiled man, hunted across a continent by what looked at that moment like the most total power on earth, to write the great does not stay great.

This was a prediction, written by an educated man who had every reason to despair,

and refused.

And history made him a prophet.

In the Summer of 1940, Britain stood with its back against the wall.

Poland had fallen, Rotterdam in Ruins, France had fallen. The continent had gone dark.

The Third Reich stood at the very peak of its power, more total, more certain of itself than any tyranny in living memory, and between it and the end of European freedom there was one island, one stretch of unpredictable water, and a people who had every rational reason to make terms.

And they refused.

Churchill rose in the House of Commons and said:

We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills;

We, shall never surrender.

Notice what he did not say. He did not promise victory. He could not, no honest person could that summer. He promised only that they would not lay down. Back against the wall, with the great at its very greatest, one people said: we shall never surrender.

And the great did not stay great. Das Große blieb groß nicht.

Stand on a riverbank, in Prague, Berlin, Budapest or the Potomac, and the stones on the bottom look immobile, eternal. But the water never stops. And one day the stone that was here is over there.

The river is patient in a way that empires never are. The emperors who built monuments to their own permanence lie in the ground in Prague, while the small stones go on wandering.

This speech is about a small stone. And the stone I mean is the one each of us already carries, the private right of action.

The right of a single person to stand before a court and say: I was wronged, and I demand that the law answer.

It is the oldest, plainest, most personal power the law gives an ordinary person.

One stone, in one hand. And I want to convince you today that the time has come to throw our stones together, and that a thousand private rights, exercised as one, are no longer a handful of pebbles but a river that moves empires.

Because empires do not fall to great forces. They fall to small ones, gathered, at the right moment.

Since we are in Berlin, let me tell you how the wall came down. Not just the Berlin Wall, but the whole inner German border, more than a thousand kilometres of fences and watchtowers and minefields, that separated East from West.

And it is probably not the version you have read, about a press conference gone wrong and an apparatchik misreading an order. No, I mean the true one.

It began in a church.

In the summer of 1989, in Leipzig, in the Nikolaikirche, the Church of St. Nicholas, a handful of people began to gather on Monday evenings to pray for peace.

Friedensgebete.

At first there were a few dozen. That is all. A few dozen ordinary people, in a country that watched everyone, they were lighting candles and praying in a church because it was the one room in the German Democratic Republic where the state could not always reach.

A few dozen small stones at the bottom of the river.

And then two months later there were a few hundred.

And the praying spilled out of the church and onto the square.

For years the cry of anyone who hated that regime had been Wir wollen raus, we want out. Let us leave. Let us flee to the West.

And in those weeks something changed.

The cry became Wir bleiben hier. We are staying here. We are not running. This is our country, and we will stand in it, and we will change it.

They stopped asking for an exit. They started demanding a better future.

The state grew frightened. They brought in Volkspolizei, Stasi, and army. The hospitals in Leipzig were quietly told to make room and stock extra blood. The state ordered prisons to provide for the internment of thousands of protestors. One such camp was supposed to be set up in my hometown. The father of a friend of mine told us, and told us to stay away from the protests.

Everyone understood what that meant. Everyone remembered Beijing, three months earlier. We were afraid, that we would be walking toward another Tiananmen.

But on the ninth of October, 1989, Leipzig marched anyway.

Seventy thousand people walking around the ring road past the police lines, past the soldiers, carrying candles.

Keine Gewalt, they said. No violence. My father was among them.

The state froze. The armed forces became immobile.

From a few dozen praying in a church, to a few hundred on the square, to seventy thousand on the ring road who were not frightened any longer.

From small stones to a river of stones. And the river broke the regime's neck.

One month later the wall was open, but the wall was already finished on the ninth of October, when seventy thousand people said Wir bleiben hier.

Das Große bleibt groß nicht. The great does not stay great.

But the river is not always ready, and the stone is not always enough. The moment matters as much as the stone.

Budapest, 1956. The Hungarians rose, tore down Stalin's statue, begged the West on the radio, and the Russian tanks came back, and then they hanged Imre Nagy and killed hundreds of Hungarians.

Beijing, 1989: one man with two shopping bags moving in front of a column of tanks. The most famous photograph of this decade. The tanks rolled on. The same year as Leipzig.

The same courage. And a different ending, because the time was not yet right.

So we cannot command the moment.

The river is ready or it is not, and Budapest and Beijing teach us that no amount of courage can summon the hour before its time.

But there is one thing that does not depend on the moment, one thing that is ours in every season, ready or not: the stone itself.

We did not invent the small stone. We inherited it. And the people who first pressed it into an ordinary hand told us exactly why they did.

Ovid, writing in Rome, set down the oldest reason any law was ever made:

Inde datae leges, ne firmior omnia posset. (A hexameter)

Hence laws were given, so that the stronger could not do everything.

Law exists for one purpose: to put a limit on the powerful.

Strip away every later refinement and that is the bedrock. The stone was placed in our hands precisely because, without it, the stronger does everything

And the same Romans gave the stone its first collective form. They had a name for it: the actio popularis.

Certain wrongs were wrongs against the whole community, so any citizen could rise and bring the action, not only for himself, but for all, for the res publica.

In Roman times, the idea that one private voice could carry the authority of a multitude was already embedded in the foundations of European law. The collective exercise of a private right is not an American invention; it is part of the European acquis.

Then the Code Napoléon carried a revolutionary promise: that the law would be the same for everyone. Written down, knowable, no longer a secret hidden in Latin and dust. The law became public, a stone anyone could pick up.

And then in Germany, we created something magnificent.

That did not happen a lot in twentieth-century Germany, so it is worth mentioning.

Long after the war, but still in the light of the horrible things Germans did, in 1983 our Constitutional Court gave us the Volkszählungsurteil.

The Census Judgment.

Do you know how it began: with ordinary people refusing to fill out a government form. Citizens who said: you do not get to know everything about me simply because you are more powerful.

Do not count us, count your days,

says the banner on the pictures.

And our highest court, the Bundesverfassungsgericht under its president Ernst Benda agreed.

And it forged a fundamental right the world had not yet named: das Recht auf informationelle Selbstbestimmung. The right to informational self-determination.

And listen to what the Court wrote, because it reads less like a judgment than a prediction of the world we now live in:

With the right to informational self-determination there would be incompatible a social order, and a legal order enabling it, in which citizens can no longer know who knows what about them, when, and on what occasion.

Whoever is unsure whether deviant conduct is at every moment noted and permanently stored, used, or passed on as information

will try not to draw attention to himself through such conduct.

This would impair not only the individual's chances of self-development, but also the common good, because self-determination is an elementary functional precondition of a free and democratic community founded on its citizens' capacity to act and to participate.

From this it follows: the free development of personality, under the modern conditions of data processing, presupposes the protection of the individual against the unlimited collection, storage, use, and disclosure of his or her personal data.

Read that again and tell me it was written in 1983,

before the platform economy, before Silicon Valley took control of our lives,

before privacy became a shallow slogan for the IAPP to sell overpriced tickets to horribly boring events, before Oracle and Adobe became obnoxious, before Palantir and Amazon, before a single one of these companies had a recognizable name.

Whoever is unsure whether his conduct is at every moment noted and stored will try not to draw attention to himself.

That is the surveillance economy described forty years before it was built, and before Shoshana Zuboff wrote her famous book. And our constitutional court condemned this surveillance society in advance.

We Germans wrote that. In 1983, we were the badasses. The world listened, some even followed our example.

And that is exactly why I am worried. There is a danger in having once been right. We grow comfortable. We freeze, we become the rock instead of the river. We start sunbathing in the past, admiring a monumental decision instead of forging the next one.

Es wechseln die Zeiten. The times change. Tempora mutantur.

The question is whether we change with them, or end up buried in Prague with the dead emperors.

Now, who stands on the other side.

People reach for The Great Gatsby to describe Big Tech:

They were careless people. They smashed up things and creatures and then retreated back into their money.

But carelessness would be forgivable, carelessness is almost an accident. These men and women are not careless. They are meticulous. They have measured the harm to the third decimal place. They know exactly what they do, and exactly what it costs society. This is not negligence. It is choice.

In 2017, Kate Crawford at SXSW warned plainly that artificial intelligence is ripe for abuse.

A fascist's dream, she said. Power without accountability.

She was precise, God was she precise, and she was quite early.

And along came DOGE, and Palantir, and Oracle's Larry Ellison, and Musk, and God knows who else, and they are building their fascist dreams on mediocre, yet harmful technology.

Two centuries earlier, Francisco de Goya made an etching with a single line beneath it:

El sueño de la razón produce monstruos.

The sleep of reason produces monsters.

What people often forget is that morals and ethics are good precisely because they are grounded in reason. When reason is put to sleep, what emerges is the unreasonable. Monsters.

Engagement optimization is such a monster. Shareholder value another.

And here the law gives us an answer.

It was in Scotland, on a summer evening in 1928. A woman named May Donoghue drinks from a bottle of ginger beer bought for her by a friend and out of the opaque glass come the decomposed remains of a snail. She falls ill.

But she has no contract with anyone: the friend bought the drink; the manufacturer had never met her and owed her, the law assumed, nothing.

The House of Lords disagreed. Reaching past the doctrine of no contract, no duty, Lord Atkin turned instead to the Gospel who is my neighbour and founded the modern law of negligence: you must take reasonable care to avoid acts you can foresee would injure your neighbour. The manufacturer owes a duty to the stranger at the far end of his product, the consumer he will never meet.

And the law hands us the only word we need.

Neighbour.

So let me say it plainly, dear BigTech Leaders, dear Heads of Legal and Compliance:

When TikTok's algorithm learns that a frightened child engages longer with content about self-harm, and feeds him more of it, that child is your neighbour.

When Instagram's own research shows the product makes teenage girls hate their bodies, and harm them, and the company ships it anyway, that girl is your neighbour.

When dealers use Snapchat to sell fentanyl pills to children because the messages vanish by design, that thirteen-year-old is your neighbour.

When a hiring algorithm learns from decades of biased decisions and quietly sorts every woman's application to the bottom of the pile, and no one, she can name ever, tells her why the door stayed shut, that applicant is your neighbour.

When a recommendation engine learns that outrage holds the eye longer than truth, it quietly tilts a nation toward anger, and that anger toward its neighbours, until a mob spills into the street. Every person terrorized and harmed there is your neighbour. You could foresee the injury. You measured it. And you shipped anyway.

The law is waiting for you. The actio popularis is calling, and it is ready.

But, are we? Aren’t we too small a group in this room?

Arent we David, against Goliath?

People love the story, but they often misunderstand it.

Some see it as a miracle: the little guy beats the giant by faith and luck.

But Goliath was heavy infantry: armoured, slow, built to fight another giant up close.

David refused that fight. He did not put on the armour.

He came as a slinger instead. A trained slinger could fling a stone through the air as fast as a bullet, and hit a target from farther away than any swordsman could ever reach.

David was never the underdog. He brought the right weapon to the fight, and Goliath, too heavy, too proud, too sure of himself, never had a chance.

The lesson: refuse the giant's game and bring your own weapons.

This is the plainest fact of our own moment, look east.

In February 2022, the largest army in Europe rolled toward Kyiv in a column of armour over 64 kilometers long.

Every analyst, every intelligence service, every head of state read the same map and reached the same verdict: the city had hours, days at best.

The great at its greatest. Every prediction, every expert agreed Ukraine was finished.

And the West, certain of the ending, did the kind thing: it offered the president of Ukraine a plane and a safe exile.

It offered him the ride.

And he gave the answer that belongs forever beside Churchill's we shall never surrender and beside Leipzig's Wir bleiben hier.

He said.: The fight is here. I am staying here.

Президент тут.

I need ammunition, not a ride.

He refused the ride, because the person who flees has already lost the one thing worth fighting for, and the person who stays keeps his or her chance of winning.

And then Ukraine did exactly what David did, with, let it be said, a little help from its friends. Europe and America did not send an army, so they sent a sling: the right weapons, the precise instruments built to kill the priceless heavy thing.

You know how strong a tank is. A quarter of a metre of hardened steel, a fortress on tracks, built to shrug off everything thrown at it. Now ask how the soldier with the AT launcher on his shoulder brings it down. Not with a bigger explosion. Not with brute force. The anti-tank weapon does something else entirely.

It punches a hole,

barely two centimetres wide clean through that quarter of a metre of armour, a needle, and drives a high-speed jet of metal through the wound into the sealed space inside. That is the kill.

The right weapon does not overpower the strongest armour. It goes through it. Not by being greater, but by being right. And against all odds, against every prediction, in a world half-convinced it should simply hand the bully what he wanted, the great has not stayed great.

Why?

Not because good is stronger. It is usually not.

The comforting belief that democracy must be better armed than tyranny ended with Trump's second term.

No.

It is because good knows what it is fighting for, and that knowledge is what builds the right weapon.

So hear it as our own. They will offer us the ride, too. And the ride is not a cheque, they have no intention of paying unless at gunpoint.

The ride is the quiet promise that you, personally, can be safe.

If only you step out of the fight. Log off. Keep your head down. Look away. Do not be the one who makes a fuss,

do not be the plaintiff,

do not be the qualified entity or

the name on the complaint.

Protect yourself, withdraw, go quiet, draw no attention, and let someone else, someday, somewhere, carry the burden.

Trust the regulators. Trust the Commission. Trust the DPC in Ireland.

Trust that better people in better times will handle it, so that you need not.

And here is why that ride is the most dangerous one of all:

because it is the very thing our Constitutional Court in 1983 named as the

death of a free society.

Whoever is unsure whether his conduct is noted and stored will try not to draw attention to himself.

That is the ride. The ride is the self-restraint. The ride is the going-quiet.

To take the ride is to surrender the weapon before the struggle has begun.

But We do not want the ride. We will not save ourselves by hiding, by retreating, by trusting that someone else will stand where we would not.

We want the ammunition, the weapon already in our hands.

Be you never so high, the law is above you.

It’s an old saying, but Lord Denning, an incredibly famous British judge, made it popular again in 1977.

We should make it popular again in 2026.

There is the entire case against the modern empires in a single line.

However high you build, or fly, even to mars, however far beyond the reach of any single citizen you climb,

the law is above you.

Here is the trouble, though, and it is the reason we are gathered today in Berlin.

One stone, here and one stone there, the giants do not feel, were not hitting them where it hurts.

There was always the asymmetry: the companies' strategy is to outlast each plaintiff, one by one, state by state, organization by organization, continent by continent.

Because no single person can outspend a corporation that bills its lawyers as a rounding error. Drag the wronged into the grinding mill of individual litigation, and the giant wins by attrition every time.

That asymmetry is modern Goliath's armour.

And now, at last, we can strip it from him because now we throw bigger stones.

Not a sling, but a trebuchet.

The European Representative Actions Directive is not a weak instrument, even though the national laws implementing it may seem weak. What do we care!

We will have to go to Luxembourg anyway, and we are looking forward to it!

Every single prediction my colleagues and I made, every single prediction we put in a litigation strategy memo since 2021, has turned out to be true. Damages, no threshold, check (Austrian Post). Reversal of the burden of proof, check (C-252/21 - Bundeskartellamt). Harm prevention, and no platform liability privilege, check (C-492/23 – Russmedia). CEO liability, check (C77/24 - Wunner).

There has never been a stronger ally to the cause of collective redress than the European Court of Justice.

But: They cannot do all the work by themselves. They hand us the weapons; we need to take them up and fight.

For the first time in modern European history, the private rights of a multitude can be exercised as one, and the wronged can be made whole as a group.

A thousand private rights, exercised as one, as a class, are a force of nature.

I can tell you that the number of 320,000 registrants for our Amazon case, when registration is laborious, made a huge impression on German judges at yesterday’s event. And on politicians. 320,000 are a number to reckon with.

But this weapon is useless in the hands of someone waiting for a better day.

This is a temptation. Not cowardice. the temptation to wait.

Not yet. The case is not perfect yet, the precedent not ripe yet, the political moment not quite favourable yet.

Let us wait for better times, for another CJEU decision, for the next detail to be clarified.

Wolf Biermann, another poet a German regime tried to silence (its been a habit for some time here in Berlin), stripped of his citizenship in 1976 and exiled for the crime of singing the truth, gave the answer in a single line:

Warte nicht auf bessre Zeiten.

Do not wait for better times.

Do not be, he says, wie der Tor, like the fool, who waits, day after day, on the bank of the river, for the waters to flow away so that he may cross on dry ground.

It is the oldest joke in the world. Horatius told it before Christ was born: the countryman stands at the river's edge waiting for it to run dry so he can cross,

but the river glides on, and will go on gliding for all of time. The river does not empty. There is no dry crossing coming.

The fool simply grows old on the bank, while the same river carries the stones along the whole time he stands there doing nothing.

Do you see what Biermann and Brecht and Horatius tell us together?

The river will not stop and wait for you. The waters of injustice will not drain politely away if only we are patient enough. There are no better times coming to make this fight easy.

There is only the river, moving now and our choice: to stand on the bank while our economies, our societies, our democracies flow past us,

or to wade in.

Biermann also sang Ermutigung, Encouragement.

Du, laß dich nicht erschrecken, do not let yourself be frightened, for that is exactly what they intend: daß wir die Waffen strecken schon vor dem großen Streit, that we lay down our weapons before the great struggle has even begun.

The hand that holds the stone but never throws it.

The lawyer waiting for a better day that never comes.

Do not lay down your weapons before the struggle has begun. Do not wait for better times. This is the better time. We are standing in it.

So pick up the stones you already carry. As a funder. As a qualified entity. As a trusted flagger. As a human being.

The enemies are not eternal. They are emperors of the moment, and emperors get buried in Prague, while the small stones go on wandering.

The night seems endless until, suddenly, it is not.

The great does not stay great, but only for those who refuse to wait, refuse to run, and reach for the right weapon now.

So let us do the patient, unglamorous riverbed work of moving the stones.

Let us turn the few dozen into a few hundred, and the few hundred into a few million.

Let us throw our stones together, and step off the bank, into the water.

Let us fight, not against the odds, because the odds are not against us,

but because the time is right.

And one day

dann kommt schon der Tag

we might win.

Carpe diem.